United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE
a Louisiana state prisoner, filed this federal application
seeking habeas corpus relief pursuant to 28 U.S.C. §
2254. For the following reasons, it is recommended that the
application be DISMISSED WITH PREJUDICE.
1973, petitioner was convicted of aggravated rape under
Louisiana law for an offense he committed at the age of
Based on that conviction, he was sentenced to a term of life
imprisonment. On March 31, 1975, the Louisiana Supreme
Court affirmed that conviction and sentence.
1976, petitioner filed an application seeking habeas corpus
relief pursuant to 28 U.S.C. § 2254. His application was
denied by the federal district court,  the denial of
relief was affirmed by the United States Fifth Circuit Court
of Appeals,  and his related petition for a writ of
certiorari was denied by the United States Supreme
Court. Moreover, while those federal proceedings
were pending, petitioner also filed with the state district
court a motion to correct an illegal sentence, which was likewise
1982, petitioner then filed an application for
post-conviction relief with the state district
court. That application was denied.
1984, petitioner filed a second federal habeas corpus
application. That application was also denied.
1989, petitioner filed another state application for
post-conviction relief,  and that application was likewise
denied by the state district court. His related writ
application was also later denied by the Louisiana Supreme
1991, petitioner filed with the state district court yet
another application for post-conviction relief,
which was again denied.
same year, petitioner also filed a third federal habeas
corpus application. Although that application was initially
granted by the federal district court,  the United
States Fifth Circuit Court of Appeals thereafter reversed
that judgment and ed that habeas relief be
denied. The United States Supreme Court then
denied petitioner's related petition for a writ of
2007, petitioner filed a motion to correct an illegal
sentence with the state district court.The court
denied both that motion and a related motion for
on May 17, 2010, the United States Supreme Court held that
the Eighth Amendment forbids the sentence of life without
parole for a non-homicide offense committed by a
juvenile offender. Graham v. Florida, 560 U.S. 48
(2010). Based on that decision, petitioner filed another
motion to correct an illegal sentence with the state district
court in 2011. The court granted that motion in part
and resentenced him to a term of life imprisonment
with the possibility of parole on October 24,
2012. He did not appeal.
16, 2016, petitioner then filed another motion to correct an
illegal sentence with the state district court. That motion
was denied on August 1, 2016. His related writ applications
were then likewise denied by the Louisiana Fifth Circuit
Court of Appeal on November 4, 2016,  and the
Louisiana Supreme Court on May 11, 2018.
January 25, 2019, petitioner filed the instant federal
application seeking habeas corpus relief pursuant to 28
U.S.C. § 2254. The state filed a response arguing that
the application is untimely,  and petitioner filed a
reply. For the following reasons, the
undersigned finds that the application is indeed untimely.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) includes a statute of limitations for
petitioners seeking federal habeas corpus relief pursuant to
28 U.S.C. § 2254. Specifically, the AEDPA provides:
A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period shall
run from the latest of -
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1).
B and D of 28 U.S.C. § 2244(d)(1) obviously do not apply
here because petitioner does not allege the existence of
either a state-created impediment or a newly-discovered
Subsection A, that subsection provides that the statute of
limitations commences on the date a petitioner's state
court criminal judgment becomes final. For AEDPA purposes, a
state court criminal judgment consists of the conviction and
the sentence, and the judgment is therefore not considered
“final” until both the conviction
and the sentence are final. See Burton v.
Stewart, 549 U.S. 147, 156-57 (2007); Scott v.
Hubert, 635 F.3d 659, 665-67 (5th Cir. 2011).
respect to determining the date that such a judgment becomes
“final” for the purposes of the AEDPA, the United